UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


Memorandum    for    His    Excellency,    the 
Governor  of  New  York,  in  Opposition 
to  An  Act  Entitled  "To  Regulate 
Exhibition  of  Motion  Pictures, 
Creating*  a  Commission  There- 
for, and  Making  an  Appro- 
priation Therefor." 


ALMET  F.  JENKS, 
GUSTAVUS  A.  EOGEES, 
SAUL  E.  EOGEES, 
TUDOE  JENKS, 
ALMET  F.  JENKS,  JE. 
Of  Counsel  for  National  Association 

of  Motion  Picture  Industry  of  the 

United  States. 


New  York,  May  4th,  1921. 


oq-4 


f 


INDEX 


The  Governor  Is  Not  Part  of  the  Legislature 1 

The  Question  Admits  Discussion  of: 

A.  The  Nature  of  the  Legislation 2 

B.  The  Wisdom  of  Legislation  of  Such  Nature 

in  This  Instance 2 

C.  As  to  the  Act 3 

Consideration  of  Section  4 7 

Discussion  of  License  and  Permit  and  Particularly 

Section  7 8 

Discussion  of  Section  11 10, 12 

Discussion  of  Section  9 12 

Discussion  of  Section  12 13 

Discussion  of  Section  10 14 

Discussion  of  Section  13 15 

A  Statute  Proper  for  Ohio  or  Kansas  May  Be  and 

Is  Impractical  and  Unreasonable  for  New  York  15 
There  Is  No  Such  Emergency  Here  as  to  Call  for 

Instant  Action  17 

There  Is  Grave  Harm  if  the  Bill  in  Its  Present 

Form  Is  Signed 17 

There  Is  No  Disaster  if  the  Approval  Is  Withheld . .  17 


Memorandum    for    His    Excellency,    the 
Governor  of  New  York,  in  Opposition 
to  An  Act  Entitled  "To  Regulate  the 
Exhibition  of  Motion  Pictures, 
Creating1  a  Commission  There- 
for, and  Making*  an  Appro- 
priation Therefor/9 

The  Governor  is  not  part  of  the  legislature,  but  he  is 
constituted  as  a  possible  check  or  restraint  upon  legisla- 
tion. People  vs.  Morton,  156  N.  Y.,  136. 

This  Act  must  be  presented  for  his  approval.  This 
Act  cannot  become  a  statute  unless  he  sign  it. 

At  the  hearing  the  Governor  stated  precisely  the  ques- 
tion now  before  him — "Is  this  legislation  wise  or  un- 
wise?" 

This  question  admits  discussion  of 

(A)  The  nature  of  the  legislation; 

(B)  The  wisdom  of  legislation  of  such  nature  in  this 
instance ;  and 

(C)  The  wisdom  of  the  scheme  of  the  Act  itself.  And 
unless  there  be  crisis  or  emergency  in  the  affairs  of  the 
commonwealth  that  requires  instant  action  by  legislation, 
it  is  germane  to  consider  whether  this  Act  as  a  statute 
may  be  subject  to  sound  judicial  objection. 

We  were  told  at  the  hearing  that  the  Supreme  Court 
had  decided  (236  U.  S.  230)  that  censorship  over  mov- 
ing pictures  was  lawful,  as  if  that  foreclosed  discussion. 
With  due  deference  I  submit  that  the  basis  of  the  deci- 
sion made  upon  the  Ohio  statute  is  that  the  moving  pic- 
ture enterprise  is  a  business.  The  inference  that  there- 
fore it  should  be  censored  would  apply  to  a  newspaper, 
to  a  book,  or  to  a  drama — all  business  enterprises. 


(A)'    THE  NATURE  OF  THE  LEGISLATION. 

The  Supreme  Court  went  far.  Its  decision  does  not 
foreclose  discussion  whether  the  principle  of  censorship 
should  be  applied  in  this  instance.  We  may  still  assert 
that  any  censorship  is  an  extreme  and  drastic^  measure 
that  should  be  resorted  to  only  as  a  finality  of  legislation 
contrary  to,  if  not  contradictory  of,  the  fundamentals  of 
liberty  in  this  Republic.  A  statute  for  censorship  under 
the  Police  Power  one  of  the  sovereign  powers  of  the 
State  is  not  to  be  lightly  passed.  It  should  be  based  on 
reason,  nor  is  it  to  be  enacted  arbitrarily  or  capriciously. 
People  vs.  Grisivold,  213  N.  Y.  97,  per  Miller,  J.,  for  the 
Court.  The  need  should  be  crying  and  cogent. 

As  late  as  1904  Professor  Freund  in  his  standard  work 
on  the  Police  Power  said:  (Page  421) 

"The  Criminal  law  is  generally  adequate  for 
"dealing  with  obscene  plays  or  shows — People  vs. 
"Doris,  14  App.  Div.  N.  Y.  117.  Censorship  does 
"not  exist  in  America  and  may  be  regarded  as 
"prohibited  by  the  spirit^/  of  the  Constitution— 
"Daily  vs.  Supreme  Court,  112  Cal.  114." 

(B)     THE  WI&DOM  OF  LEGISLATION  OF  SUCH  NATURE  IN 

THIS  INSTANCE. 

This  act  imposes  censors  upon  a  legitimate  business, 
one  not  only  innocent  but  capable  of  being  educational 
and  instructive.  The  business  is  not  in  the  category  of 
the  dram  shop,  the  bowling  alley,  or  the  shop  for  the  sale 
of  drugs,  nor  one  that  supports  the  burden  of  justifying 
its  existence.  In  fine,  its  character  does  not  require  nor 
does  not  justify  license  regulation.  We  venture  the  state- 
ment that  in  hundreds  of  moving  pictures  exhibited  daily 
in  this  state  there  fs  nothing  to  criticise  and  much  to 
commend,  not  only  as  innocent  amusement  but  as  in- 
structive and  enlightening,  even  to  the  teaching  of  some 


moral  lesson.  Of  course,  this  business  in  its  nature  ad- 
mits of  wrong  doing.  What  business  does  not  by  abuse 
or  by  perversion?  Pictures  may  be  objectionable,  but 
the  question  remains — is  censorship  necessary  ?  Obscene 
or  indecent  or  immoral  or  sacrilegious  pictures  are  of- 
fences against  the  criminal  law.  It  is  the  approved 
American  doctrine  that  the  criminal  law  alone  should 
deal  with  them.  In  this  state  beyond  dispute  the  law  is 
adequate:  Muller's  case,  96  N.  Y.^-0^  People  vs.  Doris, 
14  App.  Div.  117;  and  even  by  specific  provisions,  Sec- 
tion 1141,  of  the  Penal  Law.  It  is  no  argument  for  cen- 
sorship to  say  that  the  criminal  law,  although  adequate, 
is  not  enforced.  The  answer  is  that  the  criminal  law 
should  be  enforced.  The  Ency.  Brit.,  Vol.  26,  737,  738, 
says: 

"Lord  Chesterfield's  objection  in  the  House  of 
Lords  was  not  unreasonable — 'If  the  players  are 
to  be  punished,  let  it  be  by  the  laws  of  their  coun- 
try and  not  by  the  will  of  an  irresponsible 
despot.' 

We  were  told  at  the  hearing  of  some  instances  of 
offending,  but  we  were  not  shown  one  instance  when  an 
enforcement  of  existing  criminal  laws  and  statutes  could 
not  have  ended  the  evil  and  have  punished  the  offender. 
Dereliction  of  duty  under  the  existing  law  is  no  justifica- 
tion for  new  law  such  as  this. 

(C)    As  TO  THE  ACT: 

We  were  told  at  the  hearing  that  there  are  to  be  no 
censors.  Duties,  not  nomenclature,  define  an  office.  So 
we  shall  term  these  motion  picture  commissioners  "  cen- 
sors." Under  this  act  the  business  cannot  exist  without 
the  censors'  license  or  permit  as  to  each  film.  The  cen- 
sors are  dictators  as  to  each  piece  of  merchandise.  Not 
only  must  the  censors  refuse  a  license  if  they  think  the 
film  or  any  part  thereof  is  "obscene,  indecent,  immoral, 


ft 

inhuman  or  sacrilegious,"  but  also  must  they  so  do  if 
they  think  that  the  film  or  any  part  thereof  would  "tend 
to  corrupt  morals  or  to  incite  to  crime."  Whether  a 
film  or  a  part  of  a  film  is  "obscene,"  "indecent,"  "im- 
moral" or  "sacrilegious"  might  be  left  to  the  judgment 
of  such  censors  as  the  Governor  and  the  Senate  might 
select.  Words  are  things  and  these  words  are  plain 
enough.  Trial  jurors  ex  necessitate  determine  obscenity 
and  the  like,  and  may  well  do  so ;  but  there  is  this  dif- 
ference indicated  by  the  striking  comment  of  Montes- 
quieu in  his  "Spirit  of  the  Laws 


' 


"In  the  exercise  of  the  Police  Power  it  is  rather 
the  magistrate  that  punishes  than  the  law;  in  the 
judgment  of  crimes  it  is  rather  the  law  that  pun- 
ishes than  the  magistrate." 

But  what  of  the  word  "inhuman,"  that  means  "want- 
ing in  human  kindness;"  and  what  of  powers-  conferred 
by  the  words  "or  is  of  such  character  that  its  exhibi- 
tion would  tend  to  corrupt  morals  or  incite  to  crime"? 
Can  the  "personal  equation"  (to  adopt  the  phrase  of 
McKenna,  J.)  go  further  than  this?  It  is  a  far  cry  from 
pornography  to  purity.  But  what  of  the  duty  cast  on 
the  censors  to  refuse  license  not  in  that  the  film— the 
whole  picture— may  "tend  to  corrupt  morals  or  incite 
to  crime,"  but  to  refuse  license  if  any  part  of  a  film  may 
do  so? 

The  censor  of  a  film  must  be  a  psychologist,  a  thought- 
reader  for  the  multitude.  Yet  these  censors  must  decline 
license  or  permit  for  the  film  if  a  part,  in  their  judgment, 
offends  this  act.  The  censor  does  not,  of  course,  con- 
sider spectators  ignorant  of  the  existence  of  immorality 
or  of  crime  until  apprised  by  the  picture.  Any  portrayal 
of  the  human  comedy  of  life  (not  a  phase  of  it)  may 
incidentally  involve  immorality  or  even  crime.  "To  err 
is  human."  The  most  famous,  indeed  the  most  elevating, 


5 

biographies  of  human  beings,  even  in  sacred  history 
itself,  involve  acts  of  immorality  or  acts  forbidden  by 
law.  The  lesson  of  life  is  not  that  immoral  acts  meet 
with  instant  punishment,  or  that  crimes  are^yhipped  of 
justice.  If  so,  there  would  be  no  merit  in  virtue. 

It  is  the  story  as  a  ivhole  that  may  picture  the  ulti- 
mate regeneration  of  man  or  woman — the  ultimate  retri- 
bution for  wrongdoing  that  teaches  the  lesson.  The 
"personal  equation"  might  move  a  censor  authorized  or 
required  to  judge  the  whole  film  by  any  part  thereof,  to 
hold  that  the  theft  of  the  silver  candlesticks  by  Jean 
Valjean  "incites  to  crime;"  and  yet  what  lesson  more 
beautiful  than  that  of  "Les  Miserables, "  which  really 
develops  from  that  theft?  Or  the  censor  might  say: 
"This  part  of  the  film  depicts  Hester  Prynne  with  the 
"A "'upon  her  breast,  and  so  it  tends  to  corrupt  morals," 
and  yet  what  story  beyond  "The  Scarlet  Letter"  makes 
for  the  purity  of  man  and  woman,  and  promises 
them  ultimate  regeneration!  The  part  of  a  film  of 
"Ivanhoe"  that  showed  Front  de  Boeuf's  treatment  of 
Isaac  of  York  could  be  said  to  be  "inhuman;"  as  so 
the  part  of  a  film  that  showed  cannibalism  on  Robinson 
Cnlsoe's  Isle,  or  Squeers'  treatment  of  Smike  in  "Nich- 
olas Nickleby." 

It  cannot  be  said  that  these  illustrations  are  far- 
fetched when  we  remember  that  a  school  board  in  Brook- 
lyn debated  the  morality  of  reading  Longfellow's  "Build- 
ing of  the  Ship,"  in  that  the  ship  "leapSinto  the  ocean's 
arms";  that  Swinburne  by  excision  indicted  with 
forceful  power  Tennyson's  "Idylls  of  the  King"  as  im- 
moral, or  that  the  picture  of  that  sweet  and  innocent 
book,  "Bootle's  Baby/'  was  censored  in  Pennsylvania 
so  as  to  cut  the  incident  of  a  husband  burning  his  wife's 
letter  after  he  had  read  it. 


So  far  as  our  examination  shows,  not  a  statute  in 
any  other  state — Ohio,  Kansas  or  Pennsylvania — author- 
izes the  censors  to  excise  a  film,  in  order  to  determine 
from  a  part  whether  the  whole  film  may  tend  to  corrupt 
morals  or  incite  to  crime. 

The  Supreme  Court  had  before  it  the  Ohio  statute. 
But  the  Ohio  board  is  authorized  to  pass  such  films 
as  are  moral,  educational  or  amusing  and  harmless.  The 
test,  therefore,  is  a  very  broad  one.  It  is  safe  to  assume 
that  if  the  film  as  a  whole  is  moral,  although  there  may 
be  parts  that  are  inhuman,  parts  that  are  sacrilegious, 
parts  that  might  be  said  to  be  incentive  of  crime,  it  may 
be  approved  by  the  Ohio  board.  It  is  clear  that  the  Ohio 
statute  does  not  require  that  tjie  villain  of  the  piece  be 
always  humane,  be  always  religious  or  that  his  criminal 
methods  be  consistently  unattractive.  It  is  sufficient  that 
the  picture  as  a  whole  be  moral,  that  virtue  is  rewarded, 
that  vice  does  not  prosper.  Sec.  10744  of  the  Gen. 
Statutes. 

We  reiterate  that  under  this  New  York  Act,  however, 
if  a  part  of  the  film  depict  an  inhuman  deed,  though  it  be 
subsequently  punished,  or  a  sacrifgious  act,  that  is  suf- 
ficiently condemned,  or  a  fall  fiom  grace  that  is  even- 
tually atoned  for,  the  license  may  be  unattainable,  or  at- 
tained only  at  the  price  of  robbing  the  picture  of  all 
meaning,  all  value  and  all  truth.  It  is  the  whole  film 
that  sh(p©fld  be  judged — the  whole  life  that  affords  the 
lesson.  Milton,  in  his  "Areopagitica,"  says: 

"Assuredly  we  bring  not  innocence  into  the 
world,  we  bring  impurity  much  rather;  that 
which  purifies  us  is  trial,  and  trial  is  by  what  is 
contrary.  That  virtue  therefore  which  is  but  a 
youngling  in  the  contemplation  of  evil,  and  knows 
not  the  utmost  that  vice  promises  to  her  follow- 
ers, and  rejects  it,  is  but  a  blank  virtue,  not  a 
pure;  her  whiteness  is  but  an  excremental  white- 
ness ;  which  was  the  reason  why  our  sage  and  se- 


rious  poet  Spenser   (whom  I  dare  be  known  to 
think  a  better  teacher  than  Scotus  or  Aquinas), 
describing  true  temperance  under  the   person   of 
Guion,  brings  him  in  with  his  palmer  through  the 
cave  of  Mammon,  and  the  bower  of  earthly  bliss, 
that  he  might  see  and  know,  and  yet  abstain." 
And  as  a  practical  matter  we  must    remember    that 
these  powers  are  not  exercised  in  advance  of  the  manu- 
facture of  the  film  but  after  it  is  complete  for  final  pro- 
duction.   It  is  common  knowledge  that  a  film  may  have 
cost  $100,000  or  $1,000,000  to  prepare.    Only  after  the 
full  outlay  is  the  film  ready  for  the  censor.    Therefore, 
the  censor,  in  the  panoply  of  such  enormous  power,  may 
refuse  the  license  if  he  think  that  the  film,  or  any  part, 
is  of  such  character  as  may  tend  to  corrupt  morals  or  in- 
cite to  crime. 

CONSIDERATION  OF  SECTION  4. 

The  Legislature  necessarily  cast  this  police  power  of 
censorship  upon  agents,  but  the  Legislature  safeguarded 
such  drastic  power  by  committing  it  to  persons  of  "edu- 
cation and  experience  for  the  duties  of  the  office"  se- 
lected by  the  Governor  with  the  advice  and  consent  of 
the  Senate  (Sec.  1).  And  then  by  Sec.  3  the  Legislature 
nullified  if  not  destroyed  these  safeguards  by  providing 
that  these  censors  might  appoint  as  many  deputies  as 
might  be  needed,  and  by  Sec.  4  that  the  censors  "shall 
vest  these  deputies  with  authority  to  issue  licenses  or 
permits."  Any  office  of  the  many  authorized  (Sec.  4) 
may  be  in  charge  of  a  deputy  (Sec.  4).  The  deputy  is 
made  a  censor.  He  is  not  subject  to  report  to  his  chief 
for  his  chief's  action  or  for  supervision  or  for  review 
or  for  confirmation  of  the  deputies'  decision.  So  far  as 
the  Act  is  concerned,  the  deputies  are  censors.  This 
power  is  as  full  and  complete  and  final  as  that  of  the 
censors  appointed  by  the  Governor  and  the  Senate.  To 
reiterate,  the  censors  shall  select  as  many  deputies  as 


8 

they  deem  necessary  and  shall  make  each  deputy  a  cen- 
sor. The  only  necessary  limit  on  the  number  of  censor- 
appointed  censors  may  be  that  of  the  appropriation.  If 
any  deputy  is  required  and  appointed  he  must  be  a  cen- 
sor. '  *  Shall  be  vested  by  the  commission, ' '  is  the  phrase. 
Delegatus  non  potcst  delegare. 

DISCUSSION    OF   LICENSE    AND   PERMIT   AND  PARTICULARLY   OF 

SECTION  7. 

It  is  plain  that  the  scheme  of  the  Act  contemplates 
a  license  or  a  permit  for  every  film.  (Sees.  5  and  6  and 
12.)  Sec.  5  relates  to  licenses ;  Sec.  6  to  permits.  Permits 
are  of  three  kinds,  (a)  "used  films",  (b)  current  event 
films,  (c)  scientific  and  educational  films,and  films  in- 
tended solely  for  "educational,  charitable  or  religious 
purposes"  (Sec.  6).  It  seems  that  for  the  kind  last 
specified  no  fee  is  charged  (Line  16,  Sec.  6).  For  the 
other  permits  a  fee  is  charged  (Sec.  8).  A  permit  vali- 
dates a  film  as  much  as  a  license,  the  difference  is  in  the 
character  of  the  film. 

Sec.  7  provides  that  any  permit  may  be  revoked  by  the 
commission  five  days  after  notice  in  writing  is  mailed 
to  the  applicant  named  in  the  petition.  Nothing  could  be 
more  arbitrary.  There  is  no  provision  for  hearing,  no 
ground  presented  for  the  revocation,  no  requirement  for 
statement  of  reasons  for  revocation  even  in  the  notice. 
And  there  is  no  provision  for  review  even  by  the  full 
commission  as  prescribed  for  licenses  in  Sec.  10,  and 
there  is  no  provision  for  legal  scrutiny  or  review  by  cer- 
tiorari  as  prescribed  for  licenses  by  Sec.  10,  and 
successive  revocation  is  permitted.  It  cannot  be 
contended  that  Sec.  10  affords  any  review  for  per- 
mits. For  it  is  expressly  limited  to  a  license.  And 
plainly  enough  "license"  is  not  generic  so  as  to  cover 
permits  for  the  Act  repeatedly  distinguishes  license  and 


permit.  For  example,  Sec.  5,  ''License";  Sec.  6,  "Per- 
mits; Sec.  8,  "  a  license  or  a  permit";  Sec.  9,  "No  li- 
cense or  permit";  "Sec.  11,  "License  and  permit  void"; 
"Any  license  or  permit;  Any  change;  After  license  or 
permit;  Any  outstanding/ license  or  permit  (Sec.  12); 
Valid  license  or  permit  (Sec.  13) ;  Any  permit  or  li- 
cense (Sec.  13). 

Let  us  consider  further  the  effect  of  said  Sec.  7. 

It  is  true  that  there  is  a  rule  that  permits  are  not  nec- 
essarily contracts  or  property  and  therefore  may  be 
revocable.  (People  ex  rel.  Lodes  vs.  Department  of 
Health,  189  N.  Y.  187.)  But  there  is  also  a  rule  declared 
in  that  same  case  that  a  distinction  exists  between  per- 
mits under  which  a  vested  right  may  be  acquired  and 
those  in  which  such  rights  do  not  vest  (same  case,  pp. 
192,  196,  citing  Matter  of  Lyman,  160  N.  Y.,  96;  City  of 
Buffalo  vs.  Chadeayne,  134  N.  Y.,  163;  Dobbin  vs.  Los 
Angeles,  195  U.  S.  223,  and  City  of  Lowell  vs.  Arehib  uilt, 
189  Mass.  70).  The  license  in  Matter  of  Lyman,  supra, 
was  regarded  as  property  (as  Haight,  J.,  says  in  Lodes' 
case,  189  N.  Y.  at  192),  because  it  could  be  transferred, 
sold  and  assigned  to  other  persons.  In  Buffalo  vs.  Cha- 
deayne,  supra,  the  defendant  under  the  permit  had  fin- 
ished his  building  and  had  made  his  contracts  and  in- 
curred liability  and  therefore  had  a  property  interest. 

It  is  likely  that  an  applicant  who  had  contracted  for  a 
current  event  film,  or  a  scientific  or  educational  film,  or 
an  instructive  film  (Sec.  6),  would  make  a  large  outlay 
of  money  for  its  exhibition,  or  incur  obligation  for  the 
same  purpose.  TJie  permit  is  his  authority  and  justifi- 
cation. He  is  thus  within  the  second  rule  or  exception 
of  People  ex  rel  Lodef,  supra,  and  the  cases  cited.  Yet 
after  all  this,  after  the  long  lapse  of  time  the  censor 
without  preliminary  hearing  without  statement  of  his 
reasons,  can,  by  a  simple  notice  mailed,  after  5  days  re- 


voke  the  permit.  The  film  becomes  an  unlawful  thing.  The 
outlay  may  be  a  total  loss.  And  the  permit  holder  has 
no  redress.  A  permit  may  be  transferred  or  assigned. 
One  may  ask  also  what  defense  the  original  holder  could 
make  to  any  action  arising  out  of  his  obligations  that 
he  may  have  incurred. 

Sec.  7  is  practical  confiscation  by  fiat  without  reason 
stated,  and  by  fiat  without  the  right  of  review.  True, 
the  permit  holder  has  the  poor  privilege  of  applying  for 
a  license,  but  the  mischief  has  been  done,  the  wrong  com- 
mitted. And  what  chance  has  he  of  procuring  a  license 
after  the  permit  is  revoked  I 

DISCUSSION  OF  SECTION  11. 

In  addition  to  the  examination  of  the  film  prescribed 
by  Sec.  5,  Sec.  9  requires  an  application  "in  writing  in 
the  form,  manner  and  substance  prescribed  by  the  com- 
mission/.! These  are  general  words.  There  is  no  stat- 

as  to  the  essentials  of  the  applica- 


tion —  no  limitation  upon  the  censors.  Yet  Sec.  11  pro- 
vides any  license  or  permit  issued  upon  a  "false"  or 
"misleading"  affidavit  or  application  shall  be  wholly 
void  ab  initio.  Who  pronounces  upon  the  falsity  or  the 
misleading?  The  censor,  first  and  last.  "Falsity"  is 
-one  thing.  "Misleading"  is  another.  Who  first  and 
last  and  finally  says  the  censor  has  been  misled!  The 
censor  himself.  He  declares  that  he  has  been  misled. 
There  may  have  been  no  just  ground  for  that  conclusion. 
It  may  be  that  a  third  person  or  court  or  judge  would 
decide  that  there  was  no  substantial  ground  for  that  con- 
clusion. But  there  is  no  provision  for  review.  Even  the 
certiorari  of  Sec.  10  is  only  for  refusal  of  a  license. 
Censor  ipse  dixit. 

Sec.  11  also  provides,  "Any  change  or  altera- 
tion" in  a  film  after  license  or  permit,  except 
the  elimination  of  a  part  or  except  upon  written 


11 

direction  of  the  censor,  shall  be  a  violation  of  this  Act 
and  shall  also  make  immediately  void  the  license  or  per- 
mit therefor.  We  take  the  Act  as  written.  Not  any 
change  or  alteration  that  offends  the  statute  in  that  the 
change  introduces  a  feature  that  is  obscene,  indecent,  im- 
moral, inhuman,  sacrekgious,  etc.,  but  any  change  or 
alteration.  As  the  statute  reads  the  licensee  cannot 
change  or  alter  even  in  the  most  innocent  or  innocuous 
way.  If  he  does  he  violates  the  Act  and  thereby  com- 
mits a  misdemeanor  (Sec.  14)  and  makes  void  the  per- 
mit. To  revoke  the  license  or  permit  which  may  have 
resulted  in  vested  rights  is  bad  enough,  but  why  make 
the  offender,  who  may  be  innocent  of  any  wrongdoing 
in  itself,  who  may  make  an  innocent  change  or  alteration 
a  criminal — a  misdemeanant!  A  man  may  be  perfectly 
innocent  so  far  as  intent  is  concerned  and  yet  commit  a 
misdemeanor.  The  "crime"  may  have  been  committed 
by  a  subordinate  in  perfect  innocence,  none  the  less  is 
the  license  revoked  ipso  facto  without  hearing  or  re- 
view. The  Act  might  have  intended  an  offensive  change 
or  alteration.  It  does  not  so  provide.  The  change  or 
alteration  may  even  become  necessary  under  the  local 
ordinance  of  the  village,  town  or  city  where  the  film  is 
to  be  exhibited.  We  read  it  as  it  is  written.  This  ob- 
servation extends  to  other  doings  forbidden  by  this  act 
which  are  declared  misdemeanors  by  Sec.  14  and  are 
therefore  crimes.  Intent  need  not  be  an  element  of  a 
misdemeanor.  The  offender  may  have  been  innocent  of 
intentional  wrong  and  yet  violate  the  law — he  may  have 
been  the  mere  innocent  subordinate  and  yet  the  crime 
(misdemeanor)  be  committed.  The  Court  may  even  sus- 
pend sentence  yet  the  crime  exist  with  all  the  conse- 
quences declared  by  this  act.  /^See  Life  Photo,  v.  Bell, 
90  Misc.  469,4  J  7  ' '  o  *>  //>/>//?  re  r 
o  c  ft L 


12 


DISCUSSION  or  SECTION  9. 

Sec.  9  provides  for  a  serial  number  which  is  a  perman- 
nent  part  of  principal  title,  etc.  This  in  the  parlance 
of  the  business  is  called  "a  trailer."  Illustration  may 
show  the  hardship. 

A  picture  is  to  be  shown  at  the  Capitol  or  one  of  the 
other  Broadway  theatres  as  a  premiere  exhibition.  The 
approval  of  the  censors  has  been  delayed — perhaps  un- 
avoidably. All  such  performances  as  this  are  usually 
advertised  weeks  in  advance.  The  statute  contemplates 
that  the  " trailer"  provided  for  in  Sec.  9  should  be  at- 
tached to  the  picture,  showing  that  it  has  been  censored 
and  approved.  The  "trailer"  has  been  ordered;  8:15 
P.  M.  arrives ;  the  curtain  is  about  to  go  up ;  the  operator 
discovers  the  "trailer"  has  not  come  from  the  printing 
establishment ;  he  gets  the  order  from  the  assistant  man- 
ager of  the  theatre  (who  may  not  be  an  employee  of  the 
producing  or  exhibiting  company).  The  picture  is  shown 
without  the  "trailer."  This  is  a  misdemeanor  under 
Section  9  of  the  statute,  and  a  conviction  of  this  offense, 
although  the  film  has  been  licensed  and  approved,  ipso 
facto  revokes  the  license. 

DISCUSSION  or  SECTION  11. 

Section  11  provides  a  crime  committed  by  the  ex- 
hibition, or  unlawful  possession  of  any  film  in  the 
State  of  New  York  shall  per  sei  revoke  any  "outstand- 
ing" license  or  permit  for  said  film.  How  is  a  crime 
committed  by  the  exhibition  of  a  film  if  there  be  an  "  out- 
standing license  or  permit  for  it!  Unless  perhaps  the 
film  may  be  exhibited  changed  and  altered  as  heretofore 
discussed. 


13 

DISCUSSION  OF  SECTION  12. 

Section  12  relates  to  unlawful  use  or  exhibition.  Un- 
der its  provisions  it  is  unlawful  to  exhibit  "in  connec- 
tion withSany  business  in  the  State  of  New  York"  un- 
less there  is  at  the  time  in  full  force  and  effect  a  valid 
license  or  permit,  etc.  It  may  be  concluded  that  the  act 
intends-  an  exhibition  for  the  advertising  purposes  of 
any  business.  But  it  is  not  the  question  what  the  act 
intends.  If  the  manufacturer  in  the  State  of  a  film  ex- 
hibits it  in  his  salesroom  or  manufactory  privately  for 
trade  purposes  of  sale  to  an  exhibitor  is  this  not  an  ex- 
hibition in  connection  with  his  (the  manufacturer's) 
business  and  therefore  with  "a  business  in  the  State  of 
New  York"?  Why  should  the  manufacturer  before  he 
can  do  this  thing  be  required  to  obtain  a  license  or  per- 
mit and  pay  for  it?  Suppose  he  exhibits  to  a  possible 
purchaser  for  use  in  another  State.  It  is  unlawful  un- 
less he  pay  the  license  fee.  And  thus  the  license  fee 
which  is  intended  to  apply  in  the  regulation  under  the 
police  power  is  in  fact  a  license  fee  for  the  doing  of 
business — an  unjust  perversion. 

Does  the  Act  violate  Section  9,  Article  1,  of  the  Fed- 
eral Constitution? 

For  example,  the  Interocean  Film  Company  is  one  of 
several  whose  business  is  that  exclusively  of  export,  and 
theirs  is  merely  a  place  of  business  in  New  York.  They 
sell  to  all  over  the  world  from  their  place  of  business  in 
New  York.  Under  the  existing  statute  every  reel  shown 
to  their  foreign  customers  must  first  be  licensed,  al- 
though it  is  being  exhibited  to  a  customer  for  export  only 
and  this  customer  is  himself  a  non-resident  of  the  state 
and  a  representative  of  foreign  film  buyers. 


14 

Is  this  not  practically  a  tax  on  exports?  If  so  we  ask 
a  reading  of  the  second  paragraph  of  Sec.  10  of  the 
same  article  of  the  Federal  Constitution. 

In  addition  to  this,  the  practical  effect  would  be  to 
drive  all  printers  of  films  for  export  out  of  New  York 
into  some  other  state  where  it  would  not  be  necessary, 
as  under  the  present  proposed  statute,  to  pay  a  fee  on 
every  reel  printed  for  export  and  submit  it  in  advance  to 
the  censorship. 

DISCUSSION  OF  SECTION  10. 

Section  10  provides  for  a  review  by  the  full  commis- 
sion and  by  certiorari.  The  censor  is  thereby  made  a 
jury,  whose  action  cannot  be  disturbed  unless  the  Court 
would  set  aside  a  verdict  of  a  jury  as  against  the  weight 
of  evidence.  We  know  how  rarely  are  verdicts  thus  dis- 
turbed. 

The  very  term  " Certiorari"  implies  review  of  the  evi- 
dence that  was  before  the  censors.  The  duty  of  the  cen- 
sor is  to  examine  promptly  every  motion  picture  film. 
There  is  but  one  way  to  examine  the  picture — view  there- 
of. Surely  the  relator  in  Certiorari  is  not  to  be  judged 
by  the  report  and  the  description  of  the  censors  men- 
tioned in  Section  5.  That  is  not  the  evidence.  The  pic- 
ture itself  that  must  be  presented  on  screen  is  the  best 
evidence  of  its  character.  People  v.  Chicago,  209  111. 
App.  582.  See,  too,  People  v.  Scheutler,  Id.  588 ;  Produc- 
tion Corp.  v.  Comm.,  95  Ohio,  p.  400. 

Imagine  a  Court  upon  a  Certiorari  to  review  the  cen- 
sors, with  the  courtroom  that  must  be  turned  into  a  mov- 
ing picture  exhibition  room  with  lowered  lights  and  all 
of  the  paraphernalia. 


15 

DISCUSSION  OF  SECTION  13. 

The  maker  may  have  a  film  which  has  been  licensed  as 
free  from  all  criticism.  He  naturally  may  have  sold  it 
to  many  persons.  Section  13  provides  that  if  any  ex- 
hibitor makes  an  obscene,  indecent  or  immoral  or  sacri- 
Hgious  poster,  banner  or  similar  advertising  matter  as 
to  the  film  the  commission  may  revoke  "any  permit  or 
license  issued  by  the  commission."  Doe  may  have  made 
an  entirely  proper  film  beyond  criticism  and  have  sold  it 
to  a  hundred  exhibitors.  Roe  (one  of  them  in  some  re- 
mote town)  may  advertise  the  picture  against  this  Stat- 
ute. Doe,  500  miles  away,  is  entirely  innocent.  And  yet 
the  Statute,  to  say  the  least,  isjoosely  expressed  as  to 
permit  revocation  of  "any  permit  or  license."  Of  course 
the  limitation  should  have  been  made  as  to  the  permit 
or  license  of  the  offender. 

Finally  we  again  lay  stress  upon  those  many  provi- 
sions of  the  act  discussed  heretofore  which  in  effect  may 
destroy  property  that  exists  in  these  films,  and  impair 
if  not  destroy  vested  rights.  Such  confiscation  or  for- 
feiture is  not  an  exercise  of  the  police  power,  but  is  "in- 
tended as  rather  a  punishment  for  an  unlawful  act." 
Hence  there  should  be  judicial  proceedings,  either  per- 
sonal notice  to  the  owner,  or  at  least  proceedings  in  rem 
with  notice  by  publication..  Freund  on  Police  Power, 
526;  Caffey  v.  U.  8.,  116  U.  S.  427;  United  States 
v.  Zucker,  161  U.  S.  475.  I  know  Lawton  v.  Steele,  but 
the  turning  point  of  that  case  was  the  value  of  the  nets 
taken,  $15.  And  see  Colon  v.  Lisk,  153  N.  Y.  188. 

A  STATUTE  PROPER  FOR  OHIO  OR  KANSAS  MAY  BE  AND  IS 
IMPRACTICAL  AND  UNREASONABLE  FOR  NEW  YORK. 

The  world  market  of  the  film  industry  is  the  State  of 
New  York,  in  fact  New  York  City. 


16 

Xo  consideration  seems  to  have  been  given  in  the  draft- 
ing of  the  statute  to  the  important  fact,  that  while  Ohio 
and  Kansas  are  merely  local  points  of  exhibition,  that 
is  to  sayr  as  a  unit  each  State  represents  so  many  thea- 
tres engaged  in  exhibiting  photo  plays,  that  New  York 
State,  and  particularly  the  City  of  New  York,  is  the  cen- 
tre of  the  film  industry,  it  is  here  that  the  film  is  bought 
and  sold  for  use  in  every  State  of  the  Union;  where 
practically  100%  of  the  foreign  trade  is  had,  and  where 
export  is  exclusively  engaged  in. 

While  it  is  true  that  in  Ohio  and  possibly  in  Kansas 
large  producing  or  distributing  companies  may  have  an 
office  for  distribution  of  films  to  the  theatres  of  the  State, 
it  is  here  in  New  York  that  the  film  is  contracted  for. 
In  any  event  the  business,  as  a  business,  for  the  entire 
country,  in  fact  for  the  whole  world,  is  transacted  in  the 
City  of  New  York. 

It  is  therefore  perfectly  obvious  that  when  we  regulate 
or  legislate,  about  film  for  exhibition  in  business;  for 
taxation,  and  restraint  on  output,  there  should  be  definite 
ly  and  clearly  in  mind  the  distinction  between  New  York 
City  as  a  world  mart  and  Cleveland  or  Sandusky,  Ohio, 
or  Topeka,  Kansas,  which  merely  represent  so  many 
theatres,  dealing  with  a  purchased  or  leased  commodity 
for  temporary  use  in  their  theatres. 

The  intendment  of  this  statute  may  have  been  to  mere- 
ly regulate  the  exhibition  of  film  in  the  theatres  in  New 
York  State.  That  is  undoubtedly  the  purpose  of  the 
Ohio  and  Kansas  statutes,  but  if  this  were  the  Legislative 
intent,  it  is  not  so  expressed. 

Taking  the  bill  in  its  several  parts  or  in  the  context, 
the  resulting  language  is  that  not  only  are  there  regu- 
latory provisions  for  the  conduct  of  the  theatre  proprie- 
tor, but  the  entire  industry  as  a  business  is  brought  with- 
in the  purview  of  the  act. 


17 

In  short,  instead  of  censoring  the  performance  at  the 
theatre,  it  is  the  business  itself  that  has  been  circum- 
scribed by  a  censorship  of  rigidity,  unrelaxing. 

There  is  here  no  emergency  that  calls  for  the  imme- 
diate exercise  of  the  police  power,  like  a  pestilence  or  a 
crisis  in  the  commonwealth.  Without  this  proposed  stat- 
ute or  any  new  statute  there  are  extant  penal  laws  ap- 
plicable and  indeed  aimed  at  the  offenses  which  invite 
the  public  and  cannot  be  concealed. 

Here  is  a  comparatively  new  industry  controlled  by 
law-abiding  citizens  —  responsible  men  —  and  involving 
vast  sums  of  money  and  the  employment  of  thousands 
of  citizens.  If  properly  conducted  the  industry  in  its 
nature  is  not  alone  innocent,  but  instructive,  educational 
andelevating.  It  is  the  pre-eminent  amusement  and  re- 
^ 


of  the  great  masses,  attended  by  20,000,000  people 
daily,  of  whom  many  cannot  afford  any  other.  Inde- 
pendent of  this  act  or  of  its  defects,  the  great  controllers 
of  the  industry,  without  whose  consent  and  countenance 
the  industry  cannot  flourish,  have  come  forward  with  the 
promise  of  any  needed  reformation,  which  they  too 
desire. 

Signing  the  bill  puts  responsibility  on  the  Commis- 
sion, yet  unchosen  and  untried  —  relying  on  their  inten- 
tion to  carry  out  the  most  perplexing  and  difficult  pro- 
visions —  untested,  novel  and  sure  to  present  questions 
new  and  difficult  to  men  without  experience  —  and  the  ex- 
pense is  on  the  State. 

Leaving  it  unsigned  puts  the  responsibility  upon  most 
experienced  men,  who  know  the  business  thoroughly, 
whose  fortunes  and  careers  are  in  it,  and  who  have  given 
public  pledge  in  writing  to  make  the  needed  reforms  — 
and  they  bear  all  the  expense.  Their  success  or  failure 
will  be  decided  in  a  few  months. 


18 

And — the  moving-picture  managers  are  also  subject  to 
the  penal  laws,  as  is  every  exhibitor  of  any  film — whoroao 
the  penal  law  has  nothing  to  do  with  the  censorship — 
censors  being  only  subject  to  removel  "for  inefficiency, 
neglect  of  duty,  or  misconduct  in  office";  whereas  the 
managers  are  subject  to  indictment  and  punishment,  as 
well  as  to  loss  and  failure  in  their  careers.  Such  co- 
operation avoids  the  otherwise  inevitable  conflict  of  in- 
terests. 

We  respectfully  suggest  that  the  Governor,  if  he  feel 
that  this  particular  act  is  defective,  indefinite,  imperfect, 
and  that  a  better  statute  with  fairness  to  all  can  be 
drawn,  should  not  approve  this  Act.  We  must  not  listen 
alone  to  the  self-constituted  spokesman  who  announces 
that  a  myriad  of  people  he  assumes  to  represent  are  be- 
hind this  Act.  Self-exploitation  often  leads  to  exaggera- 
tion, and  the  assumption  that  others  are  in  favor  of  cen- 
sorship leads  such  exploiters  to  commit  others  to  an  Act 
which  they  have  never  read.  There  may  be  advocates 
for  the  principle  who  know  nothing  and  care  less  for  the 
form  of  legislation.  There  may  be  advocates  wrho  as 
laymen  have  no  interest  in  legal  provisions  or  in  just 
safeguards.  There  has  been  no  dispute  that  the  business 
may  be  reformed  in  that,  in  its  great  scheme,  there  has 
been,  and  may  be,  offending.  We  urge  that  the  Gov- 
ernor withhold  his  approval  of  the  act,  delegate 
the  subject  to  a  commission  to  be  chosen  by  him- 
self, advise  the  legislature  to  act  upon  its  recommenda- 
tions as  they  appeal  to  its  reason  and  to  his  own.  Let 
these  signers  of  the  compact  be  constituted  a  vigilance 
committee  of  their  own  industry.  The  greatest  of  all 
things  is  to  transform  evil  unto  good. 

The  statesman  is  not  he  who  is  mindful  of  the  mere 
partisans  of  either  side,  but  realizes  the  voiceless  public 
sentiment  of  the  State. 


19 


This  Act  should  not  receive  the  Executive  approval. 
Respectfully  submitted, 

ALMET  F.  JENKS, 
GUSTAVUS  A.  ROGERS, 
SAUL  E.  ROGERS, 
TUDOR  JENKS, 
ALMET  F.  JENKS,  JR. 
Of  Counsel  for  National  Association 

of  Motion  Picture  Industry  of  the 

United  States. 

New  York,  May  4th,  1921. 


